Last month, the Sixth Circuit affirmed the dismissal of
Title VII discrimination and constructive discharge claims even though the
plaintiff was treated unfairly because she could not show that she had been
treated differently than a comparable male. Gosbin v.
Jefferson County Commissioners, No. 17-3441 (2/23/18).
The plaintiff had
been publicly reprimanded and suspended for “insubordination” even though she
had never been explicitly told to take a particular course of action. The employer’s law firm had also been told
to cease working with her or telling her why.
Realizing that she might be fired, she resigned and was replaced almost
a year later by a male subordinate who lacked her qualifications. While the Court agreed that she may have been
treated unfairly, that unfairness was
not discriminatory in the absence of
evidence that she was treated differently
than a comparable male. Her efforts to
compare herself to her male predecessor and successor were futile because the
employer was unaware of the predecessor’s adoption of the challenged practice
and he was paid more than her because he possessed additional professional
licenses and responsibilities. Her
successor actually resolved the employer’s concerns taking bids for the hauling
work and paying the lowest bidder. Without
a more favorable comparator, she could not prove her prima facie case. In any
event, while she may not have been technically insubordinate in the absence of
a specific directive, the employer was still entitled to the honest belief
defense because for two months she had continued a practice that they had
informed her was legally inappropriate and needed to be corrected by placing
the matter out for competitive bidding.
According to the Court’s opinion, the plaintiff had been
promoted to department director in 2010 shortly after the long-time director
retired. A few years later, following a
complaint and her investigation, the board of county commissioners learned that
her predecessor had a verbal hand-shake deal with a local hauler to dump septic waste at the sewage treatment plant at
half-price in return for cleaning up emergency septic spills throughout the
county. While this might be acceptable
in the private sector, public sector contracts must be bid so that everyone can
compete for the business and opportunities.
She was directed to put the work and opportunities out for public
bid. While she took a few steps towards
doing so, she did not discontinue the private arrangement or actually put the emergency
septic work out for bid. Upon learning
this two months later, the Board explicitly directed her to cease permitting
any haulers to dump until they had approved a policy. She explained that she thought that they had merely
directed her to put the arrangement out for bid, but until the bidding process was
complete, that they current arrangement could continue. Nonetheless, she terminated the arrangement
the next day. The Board then suspended her for 30 days for
insubordination. Following her
suspension, her male subordinate took bids for the emergency septic work, and
then paid the lowest bidder – the same company as before – for the work instead
of letting him dump at half price. The
Board then directed its law firm to cease working with her and not tell her
why. The plaintiff resigned a few months later,
was replaced by her male subordinate almost a year later, and brought suit for
discrimination and constructive discharge.
The Court initially observed that the employee could not
prove a prima facie case of discrimination because she could not identify any
comparable male employees who were treated better than her.
In the end, whether deserved or not, there is no proof that
the suspension was based on Plaintiff’s gender . . . Plaintiff must show that the adverse action
was not simply unfair, but a pretext for discrimination. Absent any comparators, the only other
evidence is [Commissioner] Gentile’s comment in early 2010 denying that he
wanted Plaintiff out of management and his subsequent explanation that “it’s
not because you’re a woman.” But an isolated
stray comment, three and one-half years before she was suspended, does not
create an inference of discrimination. . . .
Even if Plaintiff had made out a prima facie case, she has not shown that the Board’s reason for
suspending her had no basis in fact, was not the actual reason, or was
insufficient to explain the Board’s action.
. . . Although the Commissioners did not issue a
direct “cease and desist” order, they clearly asked Plaintiff to begin a public
bidding process to replace the unbid hauling arrangement tout de suite; thus
they had an “an honest belief” that Plaintiff did not follow their orders.
The Court also rejected the constructive discharge claim on
the grounds that she could not prove any hostility was related to her gender
and because the public reprimand and suspension were an insufficient basis for
resigning.
NOTICE: This
summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can be changed or amended without notice. Readers should
not act upon this information without legal advice. If you have any questions
about anything you have read, you should consult with or retain an employment
attorney.
